'Irish Times' appeal may be heard by end of year

THE SUPREME Court is likely to hear before the end of this year the appeal by Irish Timeseditor Geraldine Kennedy and Public Affairs Correspondent Colm Keena against a High Court order requiring them to answer questions from the Mahon tribunal relating to the source of an article about financial payments to former taoiseach Bertie Ahern when he was minister for finance in 1993.

A stay on that High Court order remains in place pending the outcome of the appeal before the five-judge court.

Eoin McGonigal SC, for Ms Kennedy and Mr Keena, yesterday told the Chief Justice, Mr Justice John Murray, that his side's papers relevant to the appeal, plus their legal submissions, had been filed and he believed that the appeal would be ready for hearing from October next, when the new court term opens.

He said the tribunal side had been unable to agree the papers and wished to consider some of them. While the appeal was not ready for hearing yet, it would be by October. His side had undertaken to deal with it expeditiously, Mr McGonigal added.

He said the appeal was likely to take two days at the most as the court would have the benefit of written legal submissions from both sides.

Mr Justice Murray said he believed it would be possible to get an appeal date in the next court term and he listed the matter for mention on October 9th.

Last November, on the basis of an undertaking by Ms Kennedy and Mr Keena that they would take all necessary steps to ensure a speedy hearing of the appeal, Denis McDonald SC, for the tribunal, told the High Court the tribunal would agree to a stay on the High Court order pending the appeal.

In October last, a three-judge High Court made an order requiring the journalists to answer questions from the tribunal about the source of the article, written by Mr Keena and published in The Irish Times on September 21st, 2006, about the payments to Mr Ahern. It was published under the heading "Tribunal examines payments to Taoiseach".

The tribunal claimed the article was based on a confidential letter sent by it during its private investigative stage to a businessman, David McKenna. The article reported that the tribunal was investigating a number of payments to Mr Ahern around December 1993 and that Mr McKenna was among three or four people contacted about payments totalling between €50,000 and €100,000.

In its judgment, the High Court ruled that Irish Times privilege against disclosure of sources in the case was "overwhelmingly outweighed" by the "pressing social need" to preserve public confidence in the tribunal.

As that could only be done by the tribunal asking the journalists questions, the court said it believed the orders sought by the tribunal were necessary in a democratic society.

The court stressed that its decision must be seen in the circumstances of the particular case where the answers to the questions were unlikely to reveal the source.

If the questions could lead to identification of the source, then the journalistic privilege against disclosure could be invoked, the court said.